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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2184 OF 2014 [Arising out of Special Leave Petition (Crl.) No.5192 of 2014]

State of Rajasthan ...          Appellant

Vs.

Mohammad Muslim Tagala …          Respondent

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. Leave granted.

2. The  respondent  was  tried  along  with  two  others  viz.  

Sabena  and  Mohd.  Daud   by  the  Additional  District  &  

Sessions  Judge (Fast  Track),  Sikkar,  Rajasthan in Sessions  

Case No.24 of  2007 for  offences punishable  under  Sections  

363, 366, 376, 307 read with Section 109 of the Indian Penal  

Code  (“the  IPC”).   Learned  Sessions  Judge,  Sikkar  by  

judgment and order dated 11/6/2008 acquitted Sabena and

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Mohd.   Daud,  of  all  the  charges.   The  respondent  was  

convicted for offence punishable under Section 363 of the IPC  

and sentenced to undergo RI for three years and to pay fine of  

Rs.1,000/-, in default, to undergo SI for six months.  He was  

also convicted under Section 366A of the IPC and sentenced to  

suffer  RI  for  five  years  and to  pay  a  fine  of  Rs.2,000/-,  in  

default, to undergo SI for six months.  He was also convicted  

for  offence  punishable  under  Section  376  of  the  IPC  and  

sentenced to undergo RI for  seven years and to pay fine of  

Rs.5,000/-,  in default,  to undergo SI for six months.   The  

substantive sentences were ordered to run concurrently.   

3. Being  aggrieved  by  the  said  judgment  and  order,  the  

respondent  filed appeal  in the Rajasthan High Court.   It  is  

noticed  from  the  impugned  order  that  in  the  High  Court,  

counsel for the respondent did not argue the case on merits.  

He only  requested the Court that  the concerned authorities  

may be directed to give benefit of Section 433 of the Criminal  

Procedure  Code  (“the  Code”)  to  the  respondent.   Learned  

Public Prosecutor appearing for the State of Rajasthan did not  

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oppose the said prayer and this fact was recorded by the High  

Court in the impugned order.   The High Court then gave a  

direction  to  the  concerned  authorities  to  give  the  appellant  

benefit of Section 433 of the Code and disposed of the appeal.  

The relevant portion of the order could be quoted:

“Having  heard  the  learned  counsel  for  the  parties   and  carefully  perused  the  relevant  material  made   available  to  me  including  the  impugned  judgment,   the  concerned  authorities  are  directed  to  give  the   benefit  of  Section  433  Cr.P.C.  to  the  accused   appellant in accordance with law.”  

4. Being aggrieved by this order, the State of Rajasthan has  

filed the present appeal.  

5. On 8/5/2014, this Court asked learned counsel for the  

State of  Rajasthan whether the Public Prosecutor has really  

not  opposed the  request  made by  the  respondent’s  counsel  

that the concerned authorities be directed to give the benefit of  

Section 433 of the Code to the respondent.  Counsel made a  

statement that  the Public  Prosecutor  had not  made such a  

statement in the High Court.  We, therefore, directed that an  

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affidavit  to  that  effect  be  filed.   The  concerned  Public  

Prosecutor has, however, not filed any affidavit.   

6. As  directed  by  this  Court,  the  respondent  has  been  

served  through  ASI  Prem  Singh,  P.O.  Kotwali,  Sikkar,  

Rajasthan.  ASI Prem Singh has filed an affidavit to that effect.  

Proof  of  service  of  notice  is  annexed  to  the  said  affidavit.  

Despite service, the respondent has chosen not to appear in  

person  or  through  a  pleader.   Hence,  on  17/9/2014,  this  

Court directed the Registry of this Court to appoint a lawyer  

for the respondent.  Accordingly, Mr. John Mathew, Advocate,  

has been appointed by the Registry of this Court and he has  

ably assisted us today.  

7. The appellant-State has challenged the impugned order  

on the ground that the offence committed by the respondent  

was  grave  and,  therefore,  the  High Court  erred  in  giving  a  

direction to the authorities to give benefit of Section 433 of the  

Code  to  the  respondent.   It  is,  however,  not  stated  in  the  

appeal memo that the Public Prosecutor did not concede in the  

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High Court.  This statement was made only in this Court.  It  

must also be noted,  at  the outset,  that the respondent has  

undergone seven years’ imprisonment and has been released  

from custody.  This statement has been made by counsel for  

the appellant-State and, in support of his submission, he has  

tendered  in  this  Court  a  letter  addressed  by  the  

Superintendent  of  Bikaner  Central  Jail  to  the  Additional  

Superintendent  of  Police,  Sikkar.   Counsel  submitted  that  

though  the  High  Court  gave  a  direction  to  the  concerned  

authorities to give the respondent benefit of commutation of  

sentence under Section 433 of the Code, the said benefit was  

not given.  Since the respondent has been released from jail  

after serving the sentence imposed on him and no steps were  

taken by the concerned authorities pursuant to the direction  

given by the High Court, to give the respondent benefit under  

Section  433  of  the  Code,  the  present  appeal  has  actually  

become infructuous.  However, it is necessary to make certain  

observations before disposing of this appeal as infructuous.  

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8. Section  433  of  the  Code  pertains  to  power  of  the  

appropriate Government to commute the sentence without the  

consent of the person sentenced.  It reads thus:

“433.  Power  to  commute  sentence.  -  The  appropriate Government may, without the consent of   the person sentenced, commute-

(a) a  sentence  of  death,  for  any  other   punishment provided by the Indian Penal Code (45 of   1860);

(b) a  sentence  of  imprisonment  for  life,  for   imprisonment for a term not exceeding fourteen years   or for fine;

(c) a  sentence  of  rigorous imprisonment,  for   simple  imprisonment  for  any  term  to  which  that   person might have been sentenced, or for fine;

(d) a  sentence  of  simple  imprisonment,  for   fine.”

9. When  the  appropriate  Government  commutes  the  

sentence,  it  does  so  in  exercise  of its sovereign powers.  

The  court  cannot  direct  the  appropriate  Government  to  

exercise its sovereign powers.   The Court can merely give a  

direction to the appropriate Government to consider the case  

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for  commutation of  sentence and nothing  more.   This  legal  

position is no more res integra.  

10. In  Delhi  Administration  (now  NCT  of  Delhi)   v.  

Manohar Lal1,  this Court stated that the exercise of  power  

under Section 433 of the Code was an executive discretion.  In  

State of Punjab  v.  Kesar Singh2, this Court clarified the  

position as under:

“The  mandate  of  Section  433  CrPC  enables  the   Government in an appropriate case to commute the   sentence of a convict  and to prematurely order his   release before expiry of the sentence as imposed by   the courts. … That apart, even if the High Court could   give  such  a  direction,  it  could  only  direct   consideration of the case of premature release by the   Government  and  could  not  have  ordered  the   premature release of the respondent itself. The right   to exercise the power under Section 433 CrPC vests   in the Government and has to be exercised by the   Government  in  accordance  with  the  rules  and  established  principles.  The  impugned  order  of  the   High  Court  cannot,  therefore,  be  sustained  and  is   hereby set aside.”

1 (2002) 7 SCC 222 2 (1996) 5 SCC 495

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11. In  State (Govt. of NCT of Delhi)  v.  Prem Raj3,  this  

Court  referred to relevant portion of  41st Report  of  the Law  

Commission  and  observed  that  the  powers  of  commutation  

exclusively  vest  with  the  appropriate  Government.   At  the  

same  time,  these  powers  have  to  be  exercised  by  the  

Government  reasonably  and  rationally  keeping  in  view  the  

reasons  germane  and  relevant  for  the  purpose  of  law,  

mitigating  circumstances  and/or  commiserative  facts  

necessitating the commutation and factors like interest of the  

society and public interest.

12. The  upshot  of  this  discussion  is  that  the  High  Court  

erred  in  giving  a  direction  to  the  State  Government  to  

commute the sentence of the respondent.  It could have only  

directed the  State  Government to consider  the  respondent’s  

case for commutation of sentence.  In any case, assuming the  

High Court  could have given such a direction,  since it  was  

dealing  with  a  conviction  under  Section  376  of  the  IPC,  it  

should have noted the extra-ordinary circumstances, if  any,  

3 (2003) 7 SCC 121

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which persuaded it to give such a direction.  Unfortunately,  

the High Court merely noted the request made by the counsel  

for the respondent and concession made by the State counsel.  

If the High Court felt that the prosecution case was extremely  

weak and the respondent deserved to be acquitted, it should  

have discussed the evidence and acquitted him.  But, it could  

not have adopted such a course.  

13. Before closing, we must express our extreme displeasure  

about  the  manner  in  which  the  Public  Prosecutor  made  a  

concession in the High Court.  Firstly, the offence is grave and  

in such grave offence, the Public Prosecutor ought not to have  

made  a  concession  that  the  court  should  direct  the  

Government to commute the sentence.   Besides, the Public  

Prosecutor  made  a  concession  without  examining  the  legal  

position.  The Public Prosecutor plays a very important role in  

a criminal case. It is distressing to note that in such a serious  

case, the Public Prosecutor should have shown such a casual  

approach. Since the appeal has become infructuous, we do not  

want  to  precipitate  the  matter  further.   We  only  hope  that  

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these observations of ours are taken note of by all concerned.  

The appeal is disposed of as infructuous.  

..………………………….J. [Ranjana Prakash Desai]

………………………….J. [N.V. Ramana]

New Delhi October 13, 2014.    

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